An Introduction to the Mental Capacity Act

& Palliative Care

PRESENTATION 3
THIRD PARTY INVOLVEMENT IN DECISION-MAKING

SLIDE 1

This is the third of four presentations introducing the Mental Capacity Act and Palliative Care. This
presentation looks at third-party involvement in decision-making.

SLIDE 2: RESPONSIBILITY FOR DECISION-MAKING

Who is responsible for decision-making under the Mental Capacity Act?

It might be a person who is providing care or treatment to the patient. It might be a proxy appointed
to make decisions on the patient’s behalf. It might even be the patient himself if he has made a
valid and applicable decision to refuse particular treatment. The MCA also introduces a new form
of advocacy.

SLIDE 3: WHO IS RESPONSIBLE FOR DECISIONS THAT ARE MADE?

It is important to understand where responsibility lies under the Mental Capacity Act. Is it the
person who determines capacity, or who decides what course of action is in a patient’s best
interests, or is it the person who implements the decision? This is a particularly significant question
in palliative and end of life care where decisions about care and treatment are often made in the
context of a multi-professional team.

Under the Act ultimate responsibility for decision-making rests with the person who has to
implement the decision. So, for example, in a complex case, where a psychologist might have
been consulted to advise on a patient’s capacity, and a doctor considers that particular medication
is required, and the nurse actually administers the medication through a syringe, the nurse is the
person with whom ultimate responsibility arises.

To understand why this is the case we need to look briefly at the law of consent. We need to
consent to medical treatment, or to people dealing with our property. If we do not, the person who
cuts us open with a scalpel would be guilty of assault (or worse!) and the person who uses our
money would be guilty of theft. The MCA puts carers in the position that they would have been if
the person whom they are caring for had consented to the activity in question.

To be specific, the MCA states that if a carer reasonably believed that the person did not have
capacity to make a particular decision, and the carer reasonably believed that the course of action
was in the person’s best interests, then the carer is absolved from civil or criminal liability as if the
person had consented.

How does this work in a multi-professional team? Where there is consensus in the team about
what is to happen, all should be well. The team will take collective responsibility for assessment of
capacity and best interests decisions.

If however there is no consensus, the MCA empowers the person who implements the decision.
That person must be satisfied about both capacity and best interests. The MCA provides a
framework to enable us to identify where responsibility lies.

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To take another example, if a palliative medicine team decided that a patient needed a PEG tube,
but the gastroenterologist who needed to insert the tube advised that this was not appropriate, the
gastroenterologists view would be decisive. Another means of feeding would have to be found.

SLIDE 4: THIRD PARTY INVOLVEMENT IN DECISION-MAKING

The Act introduces some new ways in which third parties can be involved in decision-making,
either as proxy decision-makers, or as advocates. These are:

1. Lasting Powers of Attorney – LPA for short

2. Court Appointed Deputies – CAD for short
3. Independent Mental Capacity Advocates – IMCA for short.

The next slides will look at each of these in a little more detail.

SLIDE 5: LASTING POWERS OF ATTORNEY

If you give somebody a Power of Attorney, that gives that person the authority to make particular
decisions on your behalf if you do not have the capacity to make them for yourself.

The new Lasting Powers of Attorney will replace the existing Enduring Powers of Attorney.
Enduring Powers of Attorney enabled you to appoint somebody to make decisions about your
property. The main difference is that the new Lasting Powers of Attorney will enable you to appoint
other people to make decisions about your personal welfare as well as your property and affairs.
Personal welfare includes your health and social care.

Enduring Powers of Attorney made before 1 October 2007, when the Act comes into force, will
continue to be valid. However it will no longer be possible to make an Enduring Power of Attorney
after that date; it will only be possible to make a Lasting Power of Attorney – or LPA for short.

LPAs will be formal documents. It will not be possible to make them verbally, or to scribble them
down on a spare piece of paper. They will have to be in a prescribed form – the forms will be
available on the Ministry of Justice’s website. They will also have to be registered with the new
Office of the Public Guardian.

SLIDE 6: LASTING POWERS OF ATTORNEY 2

The person to whom you give authority to make decisions for you under an LPA is sometimes
called the Donee of the LPA, and you as the giver are sometimes called the Donor. It will be
possible to specify what decisions you are giving the Donee the power to make. It will also be
possible to give more than one person the power to make decisions, and to give different people
the power to make different decisions on your behalf. So, for example, you might appoint all of your
children to make decisions about your property, and only one child to make decisions about your
welfare. It is up to you.

The Donee of the LPA cannot make any decisions about life-sustaining treatment unless you have
specifically stated that you want him to have that power.

People making decisions as Donees of an LPA must make the decision in the best interests of the
Donor. That means that they must go through precisely the same process as anybody else making
a best interests decision. If somebody believes that the Donee is not making decisions in the
Donor’s best interests, they can be challenged. Ultimately an application can be made to the new
Court of Protection.

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If you are caring for somebody who has not got the capacity to make a particular decision for
himself, and somebody else claims that they have the right to make decisions under an LPA, you
should always ask to see the LPA to make sure that it does cover the decision in question, and
make sure that it has been registered.

SLIDE 7: COURT APPOINTED DEPUTIES

Court Appointed Deputies are completely new under the Act. We do not yet know how exactly how
these will work in practice.

The principles that will help the court decide whether to appoint a Deputy to make decisions on
behalf of a person include the following:

1. The court can only appoint a Deputy if it considers that it is in the best interests of the
person who lacks capacity to make a decision for himself.
2. Where possible the court should make the decision itself, rather than appoint a Deputy to
do it instead.
3. If a Deputy needs to be appointed, his appointment should be as limited in scope and for as
short a time as possible
4. The court does not have the power to appoint a Deputy to make a decision about life-
sustaining treatment. If a decision about that sort of treatment has come before the court,
the court must make the decision itself.

SLIDE 8: COURT APPOINTED DEPUTIES 2: EXAMPLES

Examples in which the court might appoint a Deputy include the following:

1. Where it is necessary to sell a person’s house or some of his property

2. Where the person has financial assets that need to be managed
3. Where there is a history of unresolved family disputes about the person’s care and a
Deputy is required to make necessary and urgent decisions
4. Where a series of linked welfare decisions need to be made over a period of time and it is
not appropriate to require them all to be made by the court.

Nobody can be appointed a Deputy without their consent. The court can appoint more than one
person to be a Deputy, and can specify which decisions each deputy has the power to make. More
than one Deputy might be required to make the same decision. Relatives, Friends or professionals
might be appointed as Deputies, depending on the circumstances. If a care professional is
appointed, the court will need to make sure that there is no conflict of interest. For example care
home managers should not generally be appointed as Deputy to make decisions about a resident.

SLIDE 9: INDEPENDENT MENTAL CAPACITY ADVOCATES

Independent Mental Capacity Advocates – or IMCAs for short – are a completely new type of
statutory advocacy service.

The most important thing about IMCAs is that they are advocates, not decision-makers. Their role
is never to make a decision on behalf of a person. Instead they are there to represent the person
about whom the decision is being made and to make sure that the decision is made in his best
interests. If necessary the IMCA can call for a second opinion or challenge the decision before the
court.

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Again, the rules about IMCAs are best understood in the context of the relationship between the
state and the individual. The government wanted to protect very vulnerable people when important
decisions were being made about them.

The Act states that IMCAs are only required in specific circumstances. However, where those
circumstances exist, IMCAs must be consulted. There is no discretion about whether to consult
one or not.

IMCAs are intended to give added protection to what the government has called “unbefriended”
people without capacity to make a particular decision. By this is meant people in relation to whom
there is nobody, other than a professional carer, whom it would be appropriate to consult when
assessing their best interests.

As the Act makes clear, IMCAs would not be required in circumstances where the person has
nominated somebody to represent his interests, or appointed somebody under an LPA, or the court
has appointed a deputy. They are required only if the person is without any family or friends whom
it would be appropriate to consult about his best interests.

SLIDE 10: INDEPENDENT MENTAL CAPACITY ADVOCATES 2

IMCAs must be instructed when an NHS or local authority body is proposing to make a particular
type of decision in relation to an “unbefriended” person. The decisions which require the
involvement of an IMCA are:

• Cases in which an NHS body is proposing to provide withhold or withdraw “serious medical
treatment”. There are regulations which prescribe what “serious medical treatment” means and
further details about this and all aspects of IMCAs are available in the Code of Practice at
Chapter 10.

• Cases in which an NHS body is making or changing arrangements for the person’s
accommodation either in hospital (if for more than 28 days) or a care home (if for more than 8
weeks)

• Cases in which a local authority is making or changing arrangements for the person’s
accommodation in a care home if for more than 8 weeks.

These exclude cases in which medical treatment or accommodation is provided to the person
under the Mental Health Acts.

Independent voluntary hospices are not NHS bodies and therefore will not have to consult an
IMCA unless they are involved in a decision which also needs to be made jointly with an NHS body
or Local Authority – for example whether to transfer an “unbefriended” MND patient to a local
authority care home.